SEPARATION AND RELEASE AGREEMENT
Exhibit
10.1
This
SEPARATION
AND RELEASE AGREEMENT
(this
“Agreement”) is made and entered into as of the date set forth below, by and
between Bennet P. Tchaikovsky (“Tchaikovsky”) and Innovative Card Technologies,
Inc. (“Company”). Tchaikovsky and the Company may be collectively referred to
hereafter as the “Parties” or individually as the “Party.”
WHEREAS,
Tchaikovsky has been employed by the Company since July 6, 2004;
WHEREAS,
Company
and Tchaikovsky mutually desire to end Tchaikovsky ’s employment with Company;
and
WHEREAS,
Tchaikovsky and Company further desire to settle fully and finally all
differences between them, including, but in no way limited to, any difference
arising out of Tchaikovsky ’s employment with Company and the termination
thereof;
NOW,
THEREFORE,
in
consideration of the premises and mutual promises herein contained, the parties
hereby agree as follows:
1. Tchaikovsky
acknowledges and agrees that his employment with the Company shall be terminated
effective on the date of Tchaikovsky ‘s signature on this agreement (the
“Termination Date”). From the Termination Date, Tchaikovsky acknowledges he
shall no longer be included as an insured person or as a Company employee under
the Company’s insurance policies.
2. Tchaikovsky
acknowledges and agrees that the following constitutes the entire amounts owed
by Company to Tchaikovsky as of the Termination Date:
Regular
Pay: $4,401.04 gross amount, less amounts required to be withheld by law or
authorized by Tchaikovsky to be withheld.
Accrued
Vacation: $2,626,34 gross amount, less amounts required to be withheld by law
or
authorized by Tchaikovsky to be withheld.
3. In
exchange for Tchaikovsky’s release of the Company from any past and future
obligations (if any), whether monetary or otherwise, allegedly owed by the
Company to Tchaikovsky
based
upon Tchaikovsky’s
employment (as delineated in Section 7 below), Company
has agreed to immediately vest Tchaikovsky in the remainder of Tchaikovsky’s
60,000 unvested options. However, Tchaikovsky acknowledges and agrees that
he
may not trade any shares of common stock of the Company presently held by
Tchaikovsky, including, but not limited to common stock underlying any and
all
options and warrants held by Tchaikovsky, for a period of 90 (ninety) days
from
the Termination Date. As further consideration for Tchaikovsky’s
release, Tchaikovsky
will be
entitled to keep the computer and related accessories issued to him by the
Company. Additionally, the 90-day termination provision for the 150,000 options
previously granted to Tchaikovsky is hereby waived by the
Company.
4. Subject
to any other agreements
with the
Company, Tchaikovsky shall be entitled to such continuation of health care
coverage as is required under, and subject to, applicable law, of which
Tchaikovsky has been notified in writing, provided Tchaikovsky timely exercises
Tchaikovsky ’s rights in accordance therewith.
5. Tchaikovsky
must turn over to Company all files, memoranda, records, credit cards and other
documents and physical or personal property that Tchaikovsky received from
Company and that are the property of Company, unless expressly provided for
or
consented to otherwise by the Company.
6.
Tchaikovsky
understands and agrees that in the course of employment with Company,
Tchaikovsky may have acquired and/or had access to confidential information,
including trade secrets, proprietary data and/or non-public information
concerning the business, professional and/or personal affairs, activities and
operations of Company. Tchaikovsky will not divulge any such information. In
addition, Tchaikovsky agrees to continue to honor all confidentiality
commitments of Company known to him to any third parties. The obligations
of this paragraph not to disclose the Information shall not apply to the extent
that Tchaikovsky is required by law to respond to any demand for the Information
from any court, governmental entity or governmental agency. If Tchaikovsky
is required by law to so respond, Tchaikovsky agrees to provide Company with
prompt notice thereof so that Company may seek a protective order or other
appropriate remedy.
7. Complete
Release by Tchaikovsky
(a) Waiver
of All Claims. Tchaikovsky
agrees that he is not entitled to receive, will not claim and expressly waives
any entitlement to rights, benefits or compensation from the Company arising
out
or related to his employment with the Company, other than as expressly set
forth
in this Agreement.
(b) Release.
Tchaikovsky irrevocably and unconditionally releases all of the claims described
in subsection (c) of this Section 7 that Tchaikovsky may now have against the
following persons or entities (the “Releasees”): the Company, all of its past
and present employees, officers, directors, stockholders, owners,
representatives, assigns, attorneys, agents, insurers, employee benefit programs
(and the trustees, administrators, fiduciaries and insurers of such programs)
and any other persons acting by, through, under or in concert with any of the
persons or entities listed in this subsection.
(c) Claims
Released.
The
claims released include all claims, promises, debts, causes of action or similar
rights of any type or nature Tchaikovsky has or had which in any way relate
to
(i) Tchaikovsky’s employment with the Company, or the termination of that
employment, such as claims for compensation, bonuses, commissions, lost wages
or
unused accrued vacation or sick pay, (ii) the design or administration of any
employee benefit program or Tchaikovsky’s entitlement to benefits under any such
program, (iii) any claims to attorneys’ fees and/or other legal costs, and (iv)
any other claims or demands Tchaikovsky may on any basis have. The claims
released include, but are not limited to, claims arising under any of the
following statutes or common law doctrines:
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(1) Anti-Discrimination
Statutes,
such as
the Age Discrimination in Employment Act, which prohibits age discrimination
in
employment; the Civil Rights Act of 1991, Title VII of the Civil Rights Act
of
1964, and §1981 of the Civil Rights Act of 1866, which prohibit discrimination
based on race, color, national origin, religion or sex; the Equal Pay Act,
which
prohibits paying men and women unequal pay for equal work; the Americans With
Disabilities Act, which prohibits discrimination against the disabled; the
California Fair Employment and Housing Act, which prohibits discrimination
in
employment based upon race, color, national origin, ancestry, physical or mental
disability, medical condition, martial status, sex, or age; and any other
federal, state or local laws or regulations prohibiting employment
discrimination.
(2) Federal
Employment Statutes,
such as
the Employee Retirement Income Security Act of 1974, which, among other things,
protects pension or health plan benefits; and the Fair Labor Standards Act
of
1938, which regulates wage and hour matters.
(3) Other
Laws,
such as
any federal, state or local laws restricting an employer’s right to terminate
employees or otherwise regulating employment; any federal, state or local law
enforcing express or implied employment contracts or requiring an employer
to
deal with employees fairly or in good faith; and any other federal, state or
local laws providing recourse for alleged wrongful discharge, physical or
personal injury, emotional distress, fraud, negligent misrepresentation, libel,
slander, defamation and similar or related claims. The laws referred to in
this
section include statutes, regulations, other administrative guidance and common
law doctrines.
(d) Release
Extends to Both Known and Unknown Claims.
This
release covers both claims that Tchaikovsky knows about and those Tchaikovsky
does not know about. Tchaikovsky understands the significance of his release
of
unknown claims and his waiver of any statutory protection against a release
of
unknown claims. Tchaikovsky expressly waives the protection of any such
governmental statutes or regulations.
More
particularly, and without limitation, Tchaikovsky acknowledges that he has
read
and is familiar with and understands the provisions of Section 1542 of the
California Civil Code, which provides:“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH,
IF
KNOWN TO HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.”
TCHAIKOVSKY
EXPRESSLY WAIVES ANY RIGHT OR CLAIM OF RIGHT TCHAIKOVSKY MAY HAVE UNDER SECTION
1542 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
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(e) Ownership
of Claims.
Tchaikovsky represents that he has not assigned or transferred, or purported
to
assign or transfer, all or any part of any claim released by this
Agreement.
8. Tchaikovsky’s
Promises.
In
addition to the release of claims provided for in section 7, Tchaikovsky agrees
to the following:
(a) No
Pursuit of Released Claims.
Tchaikovsky promises never to file or prosecute a lawsuit, administrative
complaint or charge, or other complaint or charge asserting any claims that
are
released by the Agreement. Tchaikovsky represents that Tchaikovsky has not
filed
or caused to be filed any lawsuit, complaint or charge with respect to any
claim
this Agreement releases. Tchaikovsky further agrees to request any government
agency or other body assuming jurisdiction of any complaint or charge relating
to a released claim to withdraw from the matter or dismiss the matter with
prejudice.
(b) Agreement
to be Kept Confidential.
Tchaikovsky agrees not to disclose the terms, amount or existence of this
Agreement to anyone other than a member of Tchaikovsky’s immediate family or a
professional representative of Tchaikovsky and, even as to such a person, only
if such person is informed of and agrees to honor this confidentiality
requirement. Such person’s violation of this confidentiality requirement shall
be treated as a violation of this Agreement by Tchaikovsky. This subsection
shall not prohibit disclosure of the terms, amount or existence of this
Agreement to the extent necessary legally to enforce this Agreement or to the
extent otherwise legally required.
(c) Agreement
to Not Seek Future Employment with the Company.
Tchaikovsky further acknowledges and agrees that he shall not seek or apply
for
any positions with the Company in the future. Tchaikovsky acknowledges and
agrees that any failure by the Company to hire or retain Tchaikovsky in the
future shall give rise to no claims on his part.
9. Consequences
of Tchaikovsky’s Violation of Promises.
If
Tchaikovsky breaks any of the promises in this Agreement, such as, by way of
example and not by way of limitation, by filing or prosecuting a lawsuit or
charge based on claims that Tchaikovsky has released, or if any representation
made by Tchaikovsky in this Agreement was false when made, Tchaikovsky will:
(i)
immediately return to the Company the consideration paid to him pursuant to
section 3 above; and (ii) pay reasonable attorneys’ fees and all other costs
incurred as a result of such breach or false representation, such as, by way
of
example and not by way of limitation, the Company’s cost of defending any suit
brought with respect to a claim released by him.
10. Period
for Consideration of Agreement.
Tchaikovsky
acknowledges that he was given a period of 21 days to review and consider this
Agreement before signing it. Tchaikovsky further acknowledges that: (i) he
took
advantage of this period to consider this Agreement before signing it; (ii)
he
carefully read this Agreement; and (iii) he fully understands this Agreement
and
is entering into it voluntarily and without coercion or duress.
11. Consulting
with Attorney.
Tchaikovsky acknowledges that the Company strongly encouraged Tchaikovsky to
discuss this Agreement with an attorney of Tchaikovsky’s own choosing (at
Tchaikovsky’s own expense) before signing this Agreement. Tchaikovsky
acknowledges that he has had ample opportunity to consult with an attorney.
Tchaikovsky further acknowledges that he has met with an attorney or knowingly
and willingly declined to do so.
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12. This
Agreement shall be in lieu of and in full and final discharge of any and all
obligations to Tchaikovsky for compensation, severance payments, or any other
expectations of payment, remuneration, continued coverage of any nature or
benefit on the part of Tchaikovsky arising out of or in connection with
Tchaikovsky ’s employment with Company, or under any agreement, arrangement,
commitment, plan, program, practice or policy of Company, or otherwise.
13. This
Agreement shall not in any way be construed as an admission by either party
or
by any of such party’s Releasees that he/she/it has acted wrongfully with
respect to the other party or any person, or that such party has any rights
whatsoever against the other party or the other party’s Releasees except as
specifically set forth herein, and each of the party’s Releasees specifically
disclaims any liability to or wrongful acts against the other party or any
other
person, on the part of himself/itself, its employees, or its or their agents.
Tchaikovsky and Company each represent that such party has not filed any
complaints or charges or lawsuits of any kind whatsoever against the other
party
or any of the other party’s Releasees with any governmental agency or any court
and Company and Tchaikovsky each further represents and agrees that such party
will not do so at any time hereafter with regard to any matter related to or
arising out of Tchaikovsky ’s employment with Company (or with any of the
Releasees, as applicable) or with the termination thereof.
14. The
Parties agree not to intentionally disclose, publish, or otherwise disseminate
(or cause or permit to be disclosed, published or otherwise disseminated,
whether themselves or through one or more third parties), either orally or
in
writing, to any third party, any information, thoughts, suppositions, opinions,
or other statements or comments which may be derogatory, disparaging or
defamatory to the other in any manner whatsoever. The Parties agree that damages
from the violation of this provision would be difficult to ascertain and
therefore that, among other relief, injunctive relief is appropriate to enforce
the terms hereof, in addition to whatever other remedies the non-breaching
party
would be entitled to in the event of breach.
15. In
any
claim or action between the Parties involving this Agreement, the prevailing
party shall be entitled to recover from the other party, in addition to damages,
injunctive or other relief, if any, all costs and expenses (whether or not
allowable as “cost” items by law) reasonably incurred at, before and after trial
or on appeal, or in any bankruptcy proceeding, including without limitation,
attorneys’ fees, witness fees (expert or otherwise), deposition costs, copying
charges and other expenses.
16. It
is the
desire and intent of the parties hereto that the provisions of this Agreement
be
enforced to the fullest extent permissible under law. Should there be any
conflict between any provision hereof and any present or future law, such law
will prevail, but the provisions affected thereby will be curtailed and limited
only to the extent necessary to bring them within the requirements of law,
and
the remaining provisions of this Agreement will remain in full force and effect
and be fully valid and enforceable.
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17. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of California without regard to conflicts of laws provisions. This
Agreement is binding on the successors and assigns of, and sets forth the entire
agreement between, the parties hereto; fully supersedes any and all prior
agreements or understandings between the parties hereto pertaining to the
subject matter hereof (except for those provisions of the Employment Agreement
that expressly survive the expiration or earlier termination of said Employment
Agreement); and may not be changed except by explicit written agreement to
that
effect subscribed by the parties hereto in writing.
18. The
parties agree that the exclusive venue for any and all controversies or claims
arising out of, in connection with, or relating to this Agreement, or a breach
hereof, shall be in the County of Los Angeles in either: (i) the Superior Court
of California, County of Los Angeles; or (ii) the United States District Court,
Central District of California. The parties hereto expressly consent and submit
to the jurisdiction of either such court, and agree to accept service of process
inside or outside the State of California in any matter that is to be submitted
to either such court pursuant hereto.
19. All
notices or other communications under this Agreement shall be in writing and
sent by certified or registered air mail with postage prepaid, return receipt
requested; by facsimile; or by hand delivery. Notices and other communications
to Company shall be addressed to Innovative Card Technologies, Inc.,10880
Xxxxxxxx Xxxx. Xxxxx 000 Xxx Xxxxxxx, XX 00000 (or to such other address as
Company may designate in writing from time to time). Notices and other
communications to Tchaikovsky shall be addressed to Tchaikovsky at the address
set forth on the signature page hereto (or to such other addresses as the
parties may designate in writing from time to time). Such notices and other
communications shall be deemed given and received within five (5) days of
mailing, if sent by certified or registered air mail; when receipt has been
confirmed electronically by the sender’s fax machine, if sent by facsimile; or
upon delivery, if hand delivered.
PLEASE
READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
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Bennet
P. Tchaikovsky:
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Innovative
Card Technologies, Inc.:
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/s/
Bennet P. Tchaikovsky
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By:
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Xxxxx
Xxxxxxxxx, CEO
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Date:
October 29, 2007
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Date:
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Address:
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